So what should the House do instead? Let me suggest two ways that it can play some
constitutional hardball of its own, matching the White House’s aggressive tactics.
Refusal to comply with a duly authorized subpoena from Congress constitutes
contempt of Congress. Contempt of Congress is a
crime, and there is a
mechanism for referring such cases to federal prosecutors. The problem, of course, is that federal prosecutors answer to the attorney general and, through him, to the White House, and they refuse to prosecute contempts committed by executive officials. In recent decades, congressional houses have sought a court order requiring executive officials to comply with their subpoenas, but that has all the problems described above.
The House should instead put back on the table the option of using its sergeant-at-arms to arrest contemnors — as the person in violation of the order is called — especially when an individual, like Rudy Giuliani, is not an executive branch official. Neither house of Congress has
arrested anyone since 1935, but it was not uncommon before that point (and was
blessed by the Supreme Court in 1927). Indeed, on at least two occasions,
the second in 1916, a house of Congress had its sergeant arrest an executive branch official. (In that case, the Supreme Court eventually
ruled against the House, not because it did not have the power to arrest for contempt, but rather because the offense — writing a nasty public letter to a House subcommittee — could not properly be understood as contempt of Congress.)
